United States District Court, N.D. Georgia, Atlanta Division
PATRICE HAIRSTON, BOP Reg. # 64704-019, Movant,
UNITED STATES, Respondent.
TO VACATE 28 U.S.C. § 2255
MAGISTRATE JUDGE'S FINAL REPORT AND
Clay Fuller United States Magistrate Judge.
Patrice Hairston, has filed a 28 U.S.C. § 2255 motion to
vacate her sentence. (Doc. 193). IT IS
RECOMMENDED that the motion be
On May 14, 2013, a federal grand jury sitting in the Northern
District of Georgia indicted Patrice Hairston [Movant], Sarah
Hyldahl, Bonnie Rose, and Ronnika Allen, for conspiracy, mail
fraud, and wire fraud arising from a residential mortgage
fraud scheme. Specifically, [Movant] was charged with
conspiracy under 18 U.S.C. § 1349 (Count 1), mail fraud
under 18 U.S.C. § 1341 (Counts 2 and 3), and wire fraud
under 18 U.S.C. § 1343 (Counts 4, 5, 6, and 8). Hyldahl,
Rose, and Allen subsequently pled guilty pursuant to written
plea agreements that included cooperation provisions.
(Gov't Resp. (Doc. 205) at 2 (formatting altered;
government summarizes the evidence from Movant's trial as
Between August 2008 and January 2009, [Movant] and her
cooperating co-defendants obtained . . . loans on six
properties from Quicken Loans, Inc. (“Quicken”).
Two loans were for co-defendants Rose and Allen to purchase
properties for themselves, and four loans were for straw
buyers to purchase town homes in the Ewell Parc subdivision,
one of which [Movant] herself moved into and occupied.
[Movant], a real estate agent, was involved in and helped
carry out each aspect of the fraud scheme to obtain these
loans charged in the indictment.
[Movant] and her co-defendants obtained each of these loans
by means of false representations about the borrowers'
employment, income, and bank account balance. [Movant]
falsely represented and verified for Quicken that the straw
borrowers were employees of two companies that she co-owned
with Rose, Executive Offices Plus and Marketing
Communications Group. Using her laptop computer, [Movant]
made false W-2s and earnings statements (also referred to as
paystubs) that were submitted to Quicken to support false
employment and income representations on loan applications. .
. . [E]mails between [Movant] and Allen documented that
[Movant] manufactured fake documents to help borrowers
qualify for loans.
[F]or the straw borrower/Ewell Parc loans, [Movant] and her
co-defendants obtained and attempted to obtain
“marketing fees” between $50, 000 and $70, 000
that were paid or would be paid from the loan proceeds at
closing, although no legitimate marketing work had been done.
[Movant] helped falsify documentation that was provided to
the closing attorney to obtain a “marketing fee”
out of Quicken's loan proceeds. [Movant] and her
co-defendants used these funds to pay kickbacks to the
borrowers, to fund down payments that the straw borrowers
were supposed to make from their own funds (which they did
not have), and to enrich themselves. [Movant] shared in and
split the remaining proceeds from the fraudulently obtained
“marketing fees” equally with her co-defendants.
[Movant] ended up living in one of the Ewell Parc properties,
which was purchased in the name of one of the straw
borrowers. [She] did not make payments on the mortgage.
(Id. at 4-6 (citations and footnote omitted);
see Id. at 5 n.3 (“For each loan, the
Government introduced exhibits numbered to correspond to the
substantive mail and wire fraud counts in the indictment.
These exhibits included documents from the lender's file,
numbered to correspond to the count and marked as the
“A” exhibit, and from the closing attorney's
file, marked as the “B” exhibit. Additional
documents, such as bank records, emails, and wire receipts,
relating to these loans were marked as C, D, E, and so
“and her co-conspirators pocketed most of the
‘marketing fees' as their share of the fraud
proceeds. The testimony at trial was that [Movant] and her
co-conspirators all shared in the proceeds. Bank records
corroborated this. For example, [Movant] received $18, 000
cash from the Bostic loan for 2259 Ewell Park.” (Doc.
130 (Gov't Sentencing Mem.) at 5). “As a real
estate agent, [Movant] shepherded some of the fraudulent
transactions through to closing, earning a real estate
commission of $7, 000 to $9, 000 each on three loans for such
work.” (Id.). “In addition to an almost
$70, 000 ‘marketing fee,' [Movant] earned a real
estate commission of over $7, 000 for closing th[e]
fraudulent” “Ayana Chambers/2273 Ewell Park
loan.” (Id. at 5-6). Movant “was
arrested on January 22, 2009, bringing straw buyer Heather
Moomey's cash from [a] borrower check to a closing from
which Defendant and her co-conspirators intended to get over
$75, 000 in fraud proceeds. As with the other loans, [Movant]
had made the false W-2s and paycheck stubs (or earnings
statements) used to qualify Moomey for the loan.”
(Id. at 6).
As the chart at Exhibit A shows, [Movant] and her
co-conspirators executed their fraudulent scheme multiple
times, for multiple loans and monies, for over a year.
[Movant] engaged in very straightforward, unambiguous fraud:
lying and creating false documents to get money from others.
Unlike some cases, there are no grey areas, no issues of good
faith, and no issues of mistake on [Movant's] part in
this case. But for the law enforcement sting at the Moomey
closing, there is no indication that the scheme would have
(Id. at 17).
The § 2255 Motion
§ 2255 motion, Movant claims ineffective assistance of
counsel with respect to every phase of her trial and appeal.
(See Docs. 193, 200, 202-03, 212).
Standard of Review
federal prisoner may file a motion to vacate her sentence
“upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). But it is
well-settled that “to obtain collateral relief, a
prisoner must clear a significantly higher hurdle than would
exist on direct appeal.” United States v.
Frady, 456 U.S. 152, 166 (1982).
Movant's Grounds For Relief: Ineffective Assistance
referring to herself as petitioner throughout her pleadings,
offers four grounds for relief, alleging ineffective
assistance of trial counsel in the first three grounds and
ineffective assistance of appellate counsel in the fourth.
Supreme Court set forth the standard for evaluating claims of
ineffective assistance of counsel in Strickland v.
Washington, 466 U.S. 668 (1984); see Dell v. United
States, 710 F.3d 1267, 1272 (11th Cir. 2013) (applying
Strickland standard of review to
ineffective-assistance-of-counsel claim raised in § 2255
motion). “An ineffectiveness claim . . . is an attack
on the fundamental fairness of the proceeding whose result is
challenged.” Strickland, 466 U.S. at 697. The
analysis involves two components, but a court need not
address both if the petitioner “makes an insufficient
showing on one.” Id.
a federal court determines “whether, in light of all
the circumstances, the identified acts or omissions [of
counsel] were outside the wide range of professionally
competent assistance.” Id. at 690. The court
“must be highly deferential” in scrutinizing
counsel's performance and “must indulge a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.”
Id. at 689. In other words, the petitioner
“must overcome the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy.” Id. (Internal
quotations omitted). “Given the strong presumption in
favor of competence, the petitioner's burden of
persuasion - though the presumption is not insurmountable -
is a heavy one.” Chandler v. United States,
218 F.3d 1305, 1314 (11th Cir. 2000) (en banc).
Second, a federal court determines whether counsel's
challenged acts or omissions prejudiced the petitioner, i.e.,
whether “there is a reasonable probability” - one
“sufficient to undermine confidence in the
outcome” - that “but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at
To prevail on a claim of ineffective assistance, a defendant
must establish two things: (1) “counsel's
performance was deficient, ” meaning it “fell
below an objective standard of reasonableness, ” and
(2) “the deficient performance prejudiced the
defense.” Strickland, 466 U.S. [at] 687-88
. To satisfy the deficient-performance prong, the defendant
must show that counsel made errors so serious that he was not
functioning as the counsel guaranteed by the Sixth Amendment.
Id. at 687. The defendant must rebut the strong
presumption that his counsel's conduct fell within the
range of reasonable professional assistance. Id. at
Connolly v. United States, 568 Fed.Appx. 770, 770-71
(11th Cir. 2014).
foregoing analysis also applies to claims of ineffective
assistance of appellate counsel. “A first appeal as of
right . . . is not adjudicated in accord with due process of
law if the appellant does not have the effective assistance
of an attorney.” Evitts v. Lucey, 469 U.S.
387, 396 (1985). “A defendant can establish ineffective
assistance of appellate counsel by showing: (1) appellate
counsel's performance was deficient, and (2) but for
counsel's deficient performance he would have prevailed
on appeal.” Shere v. Sec'y, Fla. Dep't of
Corr., 537 F.3d 1304, 1310 (11th Cir. 2008) (citing
Smith v. Robbins, 528 U.S. 259, 285-86 (2000)). But
appellate counsel “need not advance every argument,
regardless of merit, urged by the appellant.”
Lucey, 469 U.S. at 394; see Robbins, 528
U.S. at 288 (noting that “it is difficult to
demonstrate that [appellate] counsel was incompetent”
for failing “to raise a particular claim, ” and
“[g]enerally, only when ignored issues are clearly
stronger than those presented, will the presumption of
effective assistance of counsel be overcome” (internal
Ground One: Ineffective Assistance At The Pretrial
Movant's Claims And Arguments
ground one, Movant claims ineffective assistance of counsel
during the pretrial proceedings:
1. Counsel . . . failed to review the discovery . . . with
2. Counsel . . . failed to investigate the purported
“victims”[;] counsel would have found that all of
the alleged victims had not reported ANY loss and would
further have discovered that the alleged losses were not
within the temporal scope of the conspiracy as defined by the
indictment of December 1, 2007 through February 11, 2009.
3. Counsel . . . never asked [Movant] about the
events pertaining to or surrounding the instant case.
4. Counsel . . . never obtained police report to validate
original arrest and events from January 22, 2009, or [sought]
surveillance camera footage between the times of
approximately 12:30 p.m. and 5:42 p.m. as [Movant]
request[ed], which would have corroborated the true testimony
that [she] made at the Suppression Hearing [and would have
prevented her from receiving] the “Obstruction of
Justice” enhancement of 2 points.
5. Counsel . . . failed to notice or present Speedy Trial
6. Counsel . . . failed to use the compulsory power of the
court on [Movant's] behalf[, whereas t]he Government
subpoenaed numerous witnesses . . . . [Counsel failed to]:
(a) subpoena witnesses;
(b) interview anyone;
(c) consult or engage a forensic accountant, preferably one
with knowledge or area of expertise in mortgages/finance;
(d) subpoena or interview any of the interns, administrative
staff, contractors, etc. who did work for the companies owned
and/or operated by defendants;
(e) subpoena or interview any of the clients (current and
previous) that contracted with the companies owned and/or
operated by defendants;
(f) consult or engage a handwriting analyst, who would have
been in a position to dispute or confirm the likelihood of
signatures; instead he chose to concede to [Movant's]
guilt against her wishes.
7. Counsel . . . violated her Fifth Amendment right to Due
Process and to effective counsel when he failed to research
and investigate any of the charges alleged by the government
thereby missing the fact that Quicken Loans, Inc. did not
qualify as a financial institution at the time; so therefore
[there] was not a federal offense during the period of the
8. [Movant] incorporate[s] ¶¶ 1-7, [showing that]
but for counsel's unprofessional errors coupled with the
fact that he did not raise  other options, jurists of
reason would agree that the outcome of the sentencing would
have been different and defendant would have received the
benefit of that difference ranging from a dismissal to the
charge of misprision of felony only and the loss amounts
along with restitution being corrected accordingly.
(Doc. 200 at 13-14). Movant argues:
[Trial counsel R. Gary Spencer] failed to make even the most
minimal investigation into the facts told him; failed to
interview anyone or even get public documents or information
which would have supported the truth [Movant] told him. There
were documents that had been given to him on no less than
three  occasions, which either he did not review and/or did
not get an understanding of until the evening before the
sentencing hearing. While having this discussion regarding
the lack of loss and why, he made the statement, “If I
can't understand it, then she (meaning the judge) is not
going to be able to understand it.” His lack of
comprehension or understanding of the alleged losses that
were not within the temporal scope of the conspiracy as
defined by the indictment of December 1, 2007 through
February 11, 2009, was further reiterated in the sentencing
hearing when he stated, “It was my fault. I did not
understand the ...